WHAT RISKS ARE YOU ASSUMING?

Most of us engage, to one extent or another, in recreational activities – skiing, climbing, biking, etc. – that, by their very nature, present a certain risk of accident or injury. In any such activities, we assume the risk of an accident stemming from the inherent nature of the undertaking; however, we do not assume the risk of injury caused by third-party negligence or concealed or unreasonably suboptimal circumstances. Our Courts are often called upon to determine whether or not a specific, fact-centric risk was inherent (and assumed) or extraordinary (and actionable).

Plaintiff Alan Zelkowitz, an adult, was injured while riding a zip line that he had helped defendant Joseph Skoler, his cousin, erect on property leased by Skoler. Skoler conceived of the idea of assembling a zip line and, although he had no formal training in physics or engineering, erected it himself. Plaintiff’s assistance was limited to carrying hardware to the site and handing Skoler tools. Skoler purchased most of the equipment from an online purveyor of zip line parts and accessories, and he learned how to install the equipment by printing out various instruction manuals and guides from the websites of that purveyor and other online resources and by watching web videos. Skoler used those resources to learn the specific slope and grade to be employed in setting up the zip line, although he could not recall at his deposition the recommended specifications.

The zip line cable Skoler installed was 220 feet long. He installed it between two trees, and attached a seat to the cable, using a rope and “trolley mechanism” that ran along the cable. Skoler intended at some point to introduce a safety harness instead of a seat, which would prevent riders from falling off. The cable was affixed so that a rider would be 3 feet off the ground at its midsection, but 12 feet off the ground at each end.

The system employed what Skoler described as the “best” brake mechanism available, which consisted of a “black box” positioned on the cable between the midpoint and the end point. A bungee cord was linked from the black box to a third tree, so that when a rider’s support line (tethered to the main cable) made contact with the black box, the black box would begin to slow the rider down as the bungee cord became stretched and taut.

Skoler tested the zip line the day he installed it by using a big log as a dummy. He considered the test successful. Skoler and plaintiff then each took a turn riding the zip line, starting 13 to 15 feet away from where the cable was attached to the first tree. It was plaintiff’s first time ever riding on a zip line. Neither Skoler nor plaintiff experienced any problems with it. Skoler and plaintiff visited the site of the zip line again approximately one month later. In the interim, a handyman hired by Skoler had built a 12-foot-high access platform at the start of the zip line. Skoler took the first ride that day. As he jumped off the platform, plaintiff held a cord that was attached to the seat for the first 20 to 30 feet of Skoler’s ride, and then let go. Skoler had a smooth, problem-free ride. Skoler admitted at his deposition that he had reviewed material in preparing to install the zip line that called for multiple speed test runs, whereby someone would run alongside a zip line rider and, using a rope attached to the trolley on the zip line cable, control the rider’s speed until it was determined that the bungee cord on the black box would not stretch more than 175% of its resting length. However, he admitted that he had never conducted any such test runs.

After Skoler finished his ride, plaintiff took a turn on the zip line, although Skoler did not hold him back for the first 30 feet as he had done for Skoler. Plaintiff jumped from the platform when Skoler directed him to do so, and believed he was possibly going faster than he should have been. When he reached the point where the braking mechanism was situated, however, he began to get nervous, because he felt he was not slowing down the way Skoler had, or the way he had during the first test ride one month earlier. Fearing that he might strike his head against a tree, plaintiff put his feet out in front of him. He did not release the rope connecting the seat to the zip line, but rather held onto it until he hit the tree. When his feet made contact with the tree, plaintiff was thrown backwards, off the seat and onto a boulder on the ground, injuring his back. He commenced this negligence action against Skoler and the property owner.

The prior proceedings:

Skoler moved for summary judgment dismissing the complaint as against him on the ground that plaintiff had knowingly assumed the risks of the zip line activity, and that, rather than the zip line having been negligently constructed, plaintiff panicked and let go of the rope connecting the seat to the cable before the brake could engage. Plaintiff argued in opposition that Skoler had negligently installed and adjusted the zip line, inter alia, ignoring the need to consider the appropriate slope of the cable. In support, he submitted an affidavit by Michael Reddish, a self-styled “expert in the zip line, ropes course, and adventure parks industry.” Reddish averred that two years after the accident, he inspected the zip line, which was still intact. He found “a number of defects, deficiencies and violations of accepted standards and principles that govern the design and construction of ziplines.” For instance, the 12% slope was not at a grade consistent with “[a]pplicable standards” or by the installation documents used by Skoler. Rather, it should have been a 6% to 8% grade. Reddish stated that the first rides taken by the men after they installed the zip line were uneventful because they started at a point on the cable line where the cable slope was an acceptable 7.8%, rather than at the tree, because the platform had not yet been built. He further opined that Skoler failed to properly install and test the brake system, inasmuch as he did not abide by the written instructions calling for several test runs with only incremental increases in a rider’s speed, to make sure that the bungee cord was not stretched to more than 175% of its original length.

The decision of the Court below:

[Supreme Court] granted Skoler’s motion [for summary judgment]. It found that Skoler established prima facie his entitlement to summary judgment based on a lack of evidence that the zip line was negligently constructed, and by demonstrating that plaintiff assumed the risk by voluntarily riding the zip line, notwithstanding that he knew it was not professionally erected. The court emphasized Skoler’s testimony that he had researched zip line companies, felt competent to erect the zip line system, and successfully tested the system with a log as a dummy rider. It further found that plaintiff failed to raise an issue of fact, since Reddish’s expert opinion offered “no more than suggested recommendations,” rather than identifying mandatory guidelines or standards that were violated. The court found that the expert was too vague in asserting that the cable’s slope “greatly exceeded the maximum recommended.” Additionally, the court found that the expert’s opinion was conclusory in asserting that the brake system was improperly installed and tested. The court acknowledged a discrepancy in the testimony that made it difficult to tell whether plaintiff fell because he panicked or because the brake did not fully engage. Nevertheless, it found that the discrepancy was immaterial, because the assumption of risk doctrine applies as long as the plaintiff was aware of the potential for injury.

The applicable law:

A participant in an athletic or recreational activity assumes known risks and relieves the defendant of any duty to safeguard him from those risks…However, a participant only consents to “those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”…Whether the plaintiff was aware of the risk is key to determining if he assumed it, and this can only be “assessed against the background of the skill and experience of the particular plaintiff”…Further, sporting participants “will not be deemed to have assumed…concealed or unreasonably increased risks”[.]

And applied the law to the facts:

Plaintiff concedes that, had he merely lost his grip and fallen off the seat while riding the zip line, he would be barred from recovery because that is an inherent risk of zip-lining. However, his claim is not that he fell victim to such a common hazard. Rather, it is that the zip line was negligently constructed by defendant and that he had no way of knowing that. A person cannot be said to have assumed the risk of being injured by faulty equipment when he was unaware that the equipment was faulty[.]

Concluding that:

The record is replete with facts that prevent us from determining, as a matter of law, that any risk encountered by plaintiff was inherent in zip-lining and not enhanced by Skoler’s negligence, or that it was, or should have been, obvious to plaintiff. Even in granting the motion, the motion court conceded that there was evidence that the brake malfunctioned. Indeed, plaintiff testified that he failed to slow down as Skoler had done only moments before, even though his ride was not otherwise any different from Skoler’s. Thus, we can assume for purposes of this motion that the brake failed, regardless of the probative value of the Reddish affidavit…We can further infer that the brake was negligently installed by Skoler because he failed to test it in the manner that had been recommended to him. Moreover, the malfunctioning brake clearly enhanced the danger of the zip line. Any argument that plaintiff assumed the risk of a non-working brake is undermined by the facts that the first time he rode the zip line one month earlier he traveled with far less momentum, since the platform, which launched riders at a greater pitch, had not yet been built, and he began approximately 15 feet away from where the platform was later situated. In addition, Skoler’s ride on the day of the accident was controlled by plaintiff’s having held onto the rope. There is no evidence that plaintiff, who had no experience with zip-lining, should have taken these circumstances into consideration before deciding to ride on the zip line.

* * *

Because there are issues of fact whether the risk plaintiff encountered was enhanced by a malfunctioning brake and whether plaintiff should have been aware of that enhanced risk, the motion court erred in granting defendant summary judgment.

One Justice dissented, starting with another narrative of the facts:

In March 2011, Skoler, with the help of plaintiff Alan Zelkowitz, his 43 year-old cousin, built a zip line in the woods behind the two bungalows he leased from defendant Country Group, Inc., of which he was a 50% owner. The zip line was intended for private recreational use, and traversed a 220-foot span between two trees.

The zip line was equipped with a seat that was attached by a rope to its “trolley mechanism,” but no safety harness. The zip line also had a braking system, which consisted of a black box placed on the line between the halfway point and the end point, and a bungee cord that ran from the box to an anchor tree. When the rope attaching the seat to the trolley mechanism hit the black box, the bungee cord would stretch and become taut, slowing down the rider.

Skoler purchased the zip line and other materials on the Internet; he had no formal training in physics or engineering. Plaintiff was present for the entire installation, and assisted Skoler in the construction by carrying materials, handing him tools, and holding the work ladder. Plaintiff was aware that Skoler was not an engineer or a professional mechanic or zip line installer or instructor and that he had purchased the materials online. Although plaintiff professes to know little about zip-lines and claims that he was only a “schlepper,” at his deposition he was able to describe the zip line’s components and how they were installed, including the braking mechanism. He was also able to describe how the braking mechanism worked.

Skoler first tested the zip line with a big log, then successfully rode it himself. Plaintiff, who had never used a zip line before, then took a turn, and completed a “slow and smooth” ride without incident, observing the “[b]oulders, leaves, dirt[,] [b]ranches [and] forest debris” under the zip line.

On April 26, 2011, plaintiff visited Skoler again. After Skoler successfully tested the zip line by riding it himself, plaintiff took his turn. However, this time it seemed faster and three-quarters of the way through, as the ending tree was coming closer, plaintiff began getting a “little nervous.” When he hit the brake box, which, according to plaintiff, Skoler had just adjusted by moving the black bungee line forward towards the end tree, the brake box slowed him down a little, but not as much as it had Skoler. Fearing that he was going to crash head first into the tree at the end of the line, plaintiff put his feet out in front of him, and they slammed into the tree, throwing plaintiff backwards off the seat and onto the ground, where he struck a boulder. Skoler testified that he did not recall making any adjustments to the brakes after his ride.

The conflicting allegations:

Plaintiff alleges that Skoler negligently installed and adjusted the zip line, causing the brake system to fail when he used it. Skoler moved for summary judgment on the ground that plaintiff assumed the risk when he voluntarily rode the self-constructed zip line without a harness, including the risk of trying out an imprecise braking system.

And discussed assumption of risk:

Under the doctrine of assumption of the risk, “[a] person who voluntarily participates in a sporting or recreational event generally is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, participation in the sport”[.]

“Whether it can be concluded that a plaintiff made an informed estimate of the risks involved in an activity before deciding to participate depends on the openness and obviousness of the risk, plaintiff’s background, skill, and experience, plaintiff’s own conduct under the circumstances, and the nature of defendant’s conduct”…A plaintiff is deemed to have assumed those risks that are known and fully comprehended, open and obvious, inherent in the activity, and reasonably foreseeable consequences of the activity[.]

And applied the law to the facts:

Applying these principles, Supreme Court correctly granted Skoler’s motion for summary judgment dismissing the complaint as against him. Skoler established prima facie that plaintiff, a middle-aged adult, not an immature teenager, who was 6’4” tall and weighed approximately 215 pounds, assumed the risks of riding a zip line, an inherently dangerous activity, which include traveling at high speeds and crashing and/or falling off. Plaintiff voluntarily rode the homemade zip line, which he helped build, fully aware that Skoler was not an engineer or zip line expert, that the zip line was not equipped with a safety harness, and that there were rocks, tree stumps and other debris on the ground beneath the zip line…Furthermore, under these circumstances, “where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant”[.]

The fact that this was only the second time that plaintiff had used the zip line does not mandate a different result…Nor does the fact that plaintiff may not have anticipated the exact way in which he could be injured warrant the denial of summary judgment. “It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results”[.]

Finding no issue of facts:

Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from Skoler’s negligence, which plaintiff contends created unique and dangerous conditions beyond those inherent in the sport. The affidavit by plaintiff’s expert was conclusory and speculative…Among other things, the expert’s statement that the slope was too steep based on alleged “[a]pplicable standards,” rather than mandatory guidelines, is insufficient to raise an issue of fact[.]

While plaintiff asserts that he held Skoler back with a restraining rope for the first 30 feet of his ride to reduce his momentum, and that Skoler did not do the same for him, plaintiff did not ask Skoler to do so, and there is no evidence that the absence of the rope in any way caused plaintiff to collide with the tree at the end of the 220-foot span. Nor did plaintiff establish that any risks were unreasonably increased or concealed.

Admonishing the majority:

[For] assuming for the purposes of the motion that the braking mechanism malfunctioned, because plaintiff testified that he failed to slow down to the same extent that Skoler had done only moments before, which enhanced the danger of riding the zip line. However, the majority fails to give due consideration to the facts that plaintiff’s physical characteristics were not identical to Skoler’s and that part of the allure of riding a zip line is the enhanced height, speed and potential danger. Plaintiff, who knew that Skoler’s knowledge of zip line construction was limited at best, and that Skoler was not a professional zip line instructor, and who helped build the zip line with materials purchased from the Internet, should have appreciated that crashing and falling are inherent risks of riding a homemade zip line that was not equipped with a safety harness and that had an imprecise braking mechanism that was subject to adjustment by trial and error.

The First Department summarily reversed, as follows, an Order of Supreme Court and granted defendants’ motion for summary judgment dismissing the complaint:

Although defendant made a prima facie showing that the spin cycle on which plaintiff was injured was not defective and that defendant had not created or had notice of any such defect, issues of fact exist as to whether defendants were negligent in failing to properly instruct plaintiff, a first-time spin cycler, in the operation of the cycle and of the nature of the risks involved…For these same reasons, issues of fact also exist as to plaintiff’s assumption of concealed or unreasonably increased risks[.]

The First Department, as follows, unanimously affirmed an Order of Supreme Court that granted defendants’ motion for summary judgment dismissing the complaint:

Defendants established entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk. Defendants submitted evidence showing that plaintiff, an experienced watersports instructor, was injured when, while tubing behind defendants’ boat on a 60-foot towrope and simultaneously filming a skilled wakeboarder pulled by the same boat from a 65-foot towrope, he fell from the tube when the boat allegedly turned sharply away from the approaching shoreline and another nearby boat, and as the boat crossed its own wake, plaintiff was propelled into the water where he was struck by the wakeboarder. Defendants’ evidence showed that plaintiff’s injuries arose from commonly appreciated risks inherent in the recreational activities in which he was engaged[.]

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff’s argument that the doctrine is inapplicable because the filming activity he was engaged in amounted to horseplay, as opposed to socially valuable recreation, is unavailing. Plaintiff assumed the risks of the watersports activity he was filming on the lake, which was a known venue for such recreational activity[.]

Similarly unavailing is plaintiff’s argument that even assuming the application of the doctrine of primary assumption of the risk, he could not be deemed to have assumed certain increased risks beyond those inherent in the recreational activity, including risks created by defendants’ purported reckless conduct in operating the boat at a very fast speed, the sharp turning of the boat, the inadequate attention given to the individuals towed behind the boat, and the utilization of disparate towrope lengths at the same time…These contentions are conclusory and otherwise unsupported by expert opinion.

The Appellate Division, as follows, summarily affirmed the Order of Supreme Court that denied defendants’ motion for summary judgment dismissing the complaint:

Defendant established prima facie that plaintiff, an experienced weightlifter and user of Smith weightlifting machines, assumed the risks inherent in this activity, including the risk of being injured by falling weights while working out on a Smith machine and the risks resulting from open, obvious, and not concealed “suboptimal” conditions such as equipment configuration…In opposition, plaintiff’s expert report raised an issue of fact as to whether the subject Smith machine was faulty, which risk plaintiff cannot be said to have assumed[.]

Defendant established prima facie that it neither created nor had actual or constructive notice of the alleged defect, by submitting evidence that the employees who ran the gym were unaware of any previous complaints or accidents involving the machine and that the machine was found to be in good working order immediately after the accident and thereafter continued to be used safely…In opposition, plaintiff raised an issue of fact as to actual notice by submitting an affidavit by another gym member stating that he had previously complained about the subject machine, which was frequently out of order. Although plaintiff initially submitted the witness’s statement in inadmissible form, he indicated that the witness would be available to testify, and, in reply on his cross motion, submitted an affidavit by the witness with the explanation that the witness had been traveling outside the state and was unable to submit a sworn statement until his return…As to defendant’s contention that plaintiff was the sole proximate cause of his accident, the conflicting expert opinions preclude summary judgment.

On February 20, 2013, plaintiff was snow tubing with her then 12-year-old son at Willard Mountain, a recreational facility owned and operated by defendants. The tubing course was approximately 1,200 feet long, including a 400-foot “run-out” area partially covered with hay that was intended to slow the riders. At the end of the run-out area, there was a net that separated the course from a drop off. Between the hay covered area and the net was an approximately two-foot tall berm or mound of snow. Plaintiff and her son were tubing in tandem, that is, they rode the course while holding onto the handles of each other’s tubes. After riding in this manner a number of times, the two generated enough speed during a final run to ride through the run-out area, over the berm and into the net. Plaintiff commenced this negligence action to recover for the injuries she sustained during this last run. Following joinder of issue, defendants moved for summary judgment, arguing that plaintiff assumed the risks associated with snow tubing. Supreme Court granted the motion and plaintiff now appeals.

The applicable law:

It is settled that a person who voluntarily participates in a recreational activity such as snow tubing, “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”…Such a person, however, will not assume the risks of reckless or intentional conduct, nor will a claim be barred where the “conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent” in the activity…When determining whether the doctrine applies, we assess the participant’s knowledge of the dangerous condition and consequent risk “against the background of [his or her] skill and experience”[.]

The deposition testimony:

Here, defendants submitted the deposition testimony of the owner and certain employees who were working at the tubing hill on the day of plaintiff’s accident. The owner testified that the net was installed to stop tubers who failed to slow and stop as expected in the run-out area. Further, he testified that, although the hay was supposed to prevent tubers from hitting the net, he believed that it happened daily. The supervisor at the tubing hill testified that, at the beginning of the day, two employees rode tubes down the hill to determine where the hay should be distributed based on where their tubes stopped. The attendant assigned to work at the base of the run testified that, throughout the day, she distributed hay across the run-out area to slow riders down and “fluffed” it as needed. The supervisor testified that once it appeared that the tubes were descending too quickly based on changing conditions, she directed that the tandem rides be limited to one adult and one child. There is no dispute that plaintiff had been snow tubing at Willard Mountain a number of times before February 20, 201[3]. Moreover, on that day, plaintiff and her son reached the berm on several earlier runs but continued to ride tandem. In our view, this evidence was sufficient to meet defendants’ burden of demonstrating that plaintiff assumed the risk of hitting the net and that the risk was inherent in the activity[.]

Concluding that:

Upon such a showing, it was plaintiff’s burden to demonstrate “facts from which it could be concluded that defendant…unreasonably enhanced the danger…or created conditions which were unique or above those inherent in [the] activity…A supervisor for defendants testified that on busy days, two people were assigned to work at the base of the tubing hill to spread and “fluff” the hay as needed based on conditions. At the time of the accident, however, there was only one attendant working in this area. Further, the supervisor decided to limit the tandem riders to a parent and a child based on conditions and confirmed that weight affected the speed of the tubes, i.e., the greater the weight, the greater the speed. Plaintiff testified that just before the accident, the attendant at the top of the tubing hill assured her that it was safe for her to ride in tandem with her adult-sized son, who was nearly six feet tall and weighed approximately 250 pounds. Plaintiff’s son testified that “there wasn’t a whole lot of hay” spread at the bottom of the course. A nonparty witness testified that the tubing park was very busy and that, before the accident, he observed that the hay had diminished to the point where tubers were dragging their feet to stop their tubes. Notably, defendant’s base attendant testified that once the tandem riders were limited to one adult and one child, no other groups went past the hay, while plaintiff and her son “blew through everything.” She recalled being surprised to see two adult-sized people coming down in tandem because “it was supposed to be an adult and a child.”

When we consider this evidence in the light most favorable to plaintiff, as we must…we find that summary judgment was not appropriate. In our view, whether the base attendant adequately maintained the hay in the run-out area and whether it was appropriate under the circumstances to allow plaintiff to ride tandem with her son present factual questions with regard to whether defendants unreasonably increased the risk that plaintiff would be injured[.]

Plaintiff Ron W. Schorpp, a self-described “expert skier,” was injured while skiing down a trail at defendant Oak Mountain Ski Center…which is operated by defendant Oak Mountain, LLC in the Village of Speculator, Hamilton County. Schorpp testified that an Oak Mountain employee recommended a black-diamond trail to him. Schorpp and his daughter planned to ski down this trail and meet his wife and other children at a subsequent juncture of trails. Approximately three quarters of the way down the trail, Schorpp skied into a “depression” that was filled with snow. The skis got caught in the depression causing Schorpp to flip over and fall out of his skis…Following joinder of issue and discovery, defendants moved for summary judgment. Supreme Court denied the motion and defendants now appeal. We reverse.

And the applicable law:

Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”…Regarding downhill skiing, an individual “assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the skiing terrain”…The application of the assumption of risk doctrine must be measured “against the background of the skill and experience of the particular plaintiff”[.]

Concluding that:

[D]efendants satisfied their moving burden by demonstrating that Schorpp assumed the risk of injury associated with downhill skiing…Although this was his first time on the particular black-diamond trail, Schorpp had “decades of skiing experience” and had skied at Oak Mountain on a weekly basis prior to his accident. Taking into account his experience and skill level, Schorpp was aware of the risk of injury that could be caused by the depression on the ski slope…In opposition, plaintiffs failed to raise an issue of fact as to whether defendants concealed or unreasonably increased the risks to which Schorpp was exposed…Accordingly, Supreme Court erred in denying defendants’ motion for summary judgment.

The Appellate Division, as follows, summarily disposed of the appeal from an Order of Supreme Court that denied plaintiff’s motion for summary judgment:

Plaintiff, a cyclist, made a prima facie showing of his entitlement to partial summary judgment based on his evidence, including averments of a nonparty witness, that he was lawfully traveling in a designated bicycle lane, with a yield sign in his favor, when defendant taxi driver attempted to make a left turn and, in the process, crossed over the bicycle lane just moments before plaintiff arrived at the same spot, causing plaintiff to brake sharply and be pitched over his handlebars in order to avoid a collision with the taxi[.]

In opposition, defendant taxi driver’s observations that plaintiff was riding his bicycle very fast raised factual issues as to plaintiff’s potential comparative negligence[.]

The defendant moves for summary judgment in this case where the plaintiff, a nine-year-old child, making her maiden ski trip was injured.

The applicable law:

The defendant makes several arguments in support of summary judgment including that the mother of the plaintiff should have supervised her daughter more closely and assumption of risk. Almost ninety years ago, Chief Judge Cardozo stated: “The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home[.]”

The law has moved from assumption of risk to comparative negligence. As plaintiff’s counsel, Souren A. Israelyan, Esq., cogently and aptly states in his affirmation in opposition to the defense motion, the defendants cut a portion of the Bunny Hill slope by installing white PVC plumbing pipes to create a corral line leading to the chairlift. The PVC pipes were as hard as metal plumbing pipes and, at the same time, blended into the slope’s white snow and were not clearly visible to a skier in motion, let alone a novice skier such as the plaintiff infant. These obstructions blocked a portion of the snowy slope and were in the path of a skier’s descent. Although the defendants maintained nylon netting at the site, it did not place a fence or netting on the slope above the area to prevent and catch children and novice skiers from coming into contact with the corral line’s PVC posts.

This action was commenced on April 16, 2013 after Plaintiff, Ashley B. Jones sustained personal injuries as a passenger on an All-Terrain Vehicle (ATV) that was being operated by Defendant Eric R. Swede, who has yet to appear in the action and is in default. Argument was heard on June 22, 2015.

Defendant Darryl R. Swede is the owner of the ATV in which his grandson, Defendant Eric R. Swede, was operating at the time of the injuries suffered by Plaintiff. The question presented to this Court is whether or not Defendant, Darryl R. Swede gave either express or implied permission to Defendant, Eric R. Swede, (operator of the ATV at the time of the accident). Defendant, Darryl R. Swede is requesting Summary Judgment dismissing the complaint against him.

The relevant provision of law:

As relevant here, Vehicle and Traffic Law section 2411 imposes liability on an owner of an ATV for personal injury caused by any person using or operating the ATV with express or implied permission. The parties do not dispute that Vehicle and Traffic Law section 2411 gives rise to a presumption of permission that may be rebutted only by substantial evidence to the contrary[.]

Concluding that:

The Court need not address the issue of express permission since the facts, and both counsel agree, that there was no express permission by Defendant, Daryl R. Swede to Defendant, Eric R. Swede to use the ATV. This Court will look at implied permission only.

This Court believes that Defendant, Daryl R. Swede, through uncontradicted statements and deposition testimony of the owner, Darryl R. Swede, the operator, Eric R. Swede and Eric R. Swede’s mother, Laurie Cutcliffe, that Defendant, Eric R. Swede, was using and operating the ATV at the time of the accident without the implied permission of Defendant, Daryl R. Swede.

Extensive discovery has been conducted in this case. Based on the evidence submitted by both parties, there is nothing in the facts, nor evidence to show or infer, that Defendant, Daryl R. Swede gave implied permission to his grandson, Defendant, Eric R. Swede to operate the ATV. This Court believes that the uncontradicted disavowals of permission by both the owner of the vehicle and the driver, and a third party, constitutes the required, substantial evidence to shift the burden to the Plaintiff opposing the motion to establish a genuine factual basis to defeat the motion and to raise a question for jury determination.

The Plaintiff must then establish and present competent evidence of “implausibility, collusion, or implied permission” in order to defeat the motion and allow the issue of consent to presented to a jury”… The Plaintiff, however, is unable to do so, in that the only opposition comes by way of an Attorney Affirmation, an MV-104A by the Genesee County Sheriff’s Department and correspondence from Plaintiff’s counsel to Defendant Darryl Swede notifying him of representation.

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